Strict deadlines for deciding on freedom are latest big change in Nevada’s bail landscape

At a hearing this spring, activist Jagada Chambers described jail as “a dungeon” where every moment is trauma-filled.

It’s why he and others pushed lawmakers to put a strict cap on how long courts have to give a defendant an initial bail hearing that could mean the difference between spending a few hours in jail, or several days, without being convicted of a crime.

Legislators ultimately passed AB424, a measure that requires that a pretrial release hearing happen within 48 hours — drawing cheers from supporters who want to ensure that people are not kept behind bars for long periods of time simply because they don’t have as much money as other defendants to bail out sooner.

“We have to take into consideration the people that we're talking about here are innocent,” said Chambers, who has worked on voter rights restoration and other issues affecting formerly incarcerated people. “You should make any effort to take appropriate channels to get that handled within an hour because a person in that [dungeon] — it’s irreparable damage.”

The measure, which goes into effect next July, comes after a decades-long push in Nevada and nationwide to end or curtail the practice of using money to broker release from jail. Those efforts have largely hit dead ends in the Legislature — until a landmark decision from the Nevada Supreme Court last year helped force lawmakers’ hands by setting significant requirements for judges who want to use money as collateral for release.

“You put a bunch of cracks in the ceiling and eventually you break through,” said Sen. Dallas Harris (D-Las Vegas), who presented the bill in the Senate along with Sen. Dina Neal (D-North Las Vegas). “This was that session for bail reform.”

Critics of the status quo say using money in exchange for freedom means people are often kept behind bars longer because they are poor, rather than because they pose an actual risk to public safety. Lawmakers drew a contrast between indigent clients unable to bail out and a case involving multibillionaire Henry Nicholas, who was released without bail as he faced charges of felony drug trafficking stemming from an arrest in Las Vegas.

Even a  short jail stint can disrupt a defendant’s job and family life, making it harder to get back on their feet and return to being a productive member of the community. And bill supporters chafe that drawn-out, pretrial detention is happening to people who are presumed innocent.

“$5,000 — for some people that is insurmountable and just amounts to detention. For others, it's absolutely nothing, and that has zero to do with how dangerous the person is to the community,” Harris told The Nevada Independent. “And that is not the goal of our system at all.”

The pivotal ruling came in April 2020 in the case of Jose Valdez-Jimenez, who was assessed $40,000 bail that he could not pay after police arrested him for stealing thousands of dollars of Victoria’s Secret merchandise in Las Vegas. Among other things, the Supreme Court’s order required defendants get an individualized and adversarial court hearing — one that can involve cross-examining witnesses — promptly after their arrest to consider whether they should remain behind bars.  

But how to define “prompt” had been an open question in the year after the court ruling, subject to a wide range of opinions and questions about what can be reasonably expected from smaller jurisdictions. Lawmakers ultimately put parameters on the matter through AB424, which passed 30-12 in the Assembly and 17-4 in the Senate (several Republicans joined Democrats to support the measure).

“Having this standard across the state of, ‘you have to have a bail hearing within 48 hours,’ I think will make a huge difference,” said Washoe County Deputy Public Defender Kendra Bertschy. “How they're being treated really depends on what side of the street they're arrested on. And that's really concerning with the level of justice, and the equal justice that you're given, really depends on what court you end up in front of.”

The outcome hasn’t satisfied advocates who want complete abolition of money-based bail. They expect Nevada will still need private funds supported by donors that bail people out and help them get on with their lives before the 48-hour clock runs out.

“I think they took safe steps this year ... I think they did what was not going to ruffle too many feathers,” said Leslie Turner with the Mass Liberation Project and the Vegas Freedom Fund, which bails people out of jail and offers a wide range of support services to address other needs in their life upon release.

Holly Welborn, policy director at the ACLU of Nevada, described the law as an improvement but not a total transformation.

“We have at least met the floor of what's constitutionally permissible in the bail system in state statute,” she said. “But we haven't really embraced ending the system of wealth-based detention.”

But prosecutors, police and judges — especially ones in rural jurisdictions with smaller staffs — argue the hard deadline goes too far and is “unworkable.”

“It's an unfunded mandate,” said Jennifer Noble of the Nevada District Attorneys Association. “And it's not something where we object to the principle of it ... it's just that we need resources and funding and more people, frankly, because it's not just attorneys that are in this process.”

Others have criticized the bill as going too far in the effort to ease up on a “tough on crime” mentality that prevailed in the 1990s and beyond. Chuck Callaway of the Las Vegas Metropolitan Police Department said he worries about crimes rates going up when he sees statistics about people cycling quickly out of jail, and he senses in some of the Legislature’s recent work “an attitude of not holding criminals accountable for their actions.”

A bail bondsman arrives at the bail window at the Las Vegas Detention Center on July 29, 2021. (Daniel Clark/The Nevada Independent)

How bail works

The commercial bail bonds industry as it exists in the United States has been around since the late 1800s. After a person is arrested, a monetary amount is assigned based on the charges they face, often in line with the guidelines of a standard bail schedule, and loved ones can pay the money in full to get them out. The exception is for very serious charges such as murder, when defendants are constitutionally barred from bailing out. 

That money will be reimbursed if the person shows up to court to face the charges. In situations where loved ones do not have sufficient cash to make bail, they can enlist a bail bonds company to make the payment, but state law allows the bail company to keep 15 percent of the payment as a nonrefundable fee for its services — even if the person makes all of their court dates.

People being held in jail because they await trial — and who are considered innocent because they have yet to be convicted — make up a large portion of the Clark County Detention Center’s population. The jail, which averages about 3,700 people a day, reported 2,779 defendants were staying there on a pre-trial basis in December 2019, as opposed to serving out a sentence after a conviction.

About 85 percent of people the jail was holding pre-trial were accused of a felony, with the rest facing lesser charges. But there were signs that inability to pay bail was holding back people accused of low-level offenses — in December 2019, the jail reported having 44 people in custody for more than seven days on bail amounts less than $2,500.

Activists attempted to change the law most recently in 2019, when they came together to research what other states were doing and introduced AB325 — a bill that would have factored in a defendant’s ability to pay when setting bail. The measure, sponsored by then-Assemblyman Ozzie Fumo (D-Las Vegas) and other Democrats, faced strident opposition before it was killed, and lawmakers instead advanced a resolution calling for an interim study on pre-trial issues

“We wrote that bill, and it was ... killed,” Turner said. “But then everything that the Nevada Supreme Court ruling in Valdez-Jimenez stated, was literally everything that was in that original bill, AB325.” 

In Valdez-Jimenez, justices ruled that Nevada bail law was unconstitutional because it did not require the court to consider terms of release that were less restrictive than incarceration before determining that cash bail should be imposed.

It also shifted the burden of proof. Prior to April 2020, the law required the defendant to make a “showing of good cause” about why they should be released. In the ruling, justices flipped that standard and ruled that it was the state’s responsibility to prove — through “clear and convincing evidence” — that bail was necessary to ensure a person’s appearance in court or public safety. 

Advocates support alternatives to cash as ways to ensure someone’s court appearance, including drug testing, GPS monitoring, court date reminder calls, substance abuse rehabilitation and check-ins.

If judges conclude bail is needed, they have to document “findings of fact” about why they came to that conclusion. Harris has framed the new paradigm as a win for civil libertarians.

“This issue is an opportunity for me to proudly wear the conservative label,” Harris, who chaired an interim committee on bail, said when she presented AB424 to fellow lawmakers. “I see this as a question of how long the government can hold you, deprive you of your liberty, prior to making any argument about why that liberty should be deprived.”

State Senator Dallas Harris on the fourth day of the 81st session of the Legislature in Carson City on Thursday, Feb. 4, 2021. (David Calvert/The Nevada Independent)

Overextending staff

The bill faced fierce pushback from prosecutors and rural judges, who argued that they could drive members of their small staffs to burnout if they needed to maintain availability through the weekends. Keith Lee, a lobbyist for the Nevada Judges of Limited Jurisdiction, also questioned bill proponents’ arguments that some defendants were waiting up to 12 days for a bail hearing.

“I have no way to know whether those are correct or not. I assume they're correct. I would respectfully suggest to you that they are one-offs, however,” he told lawmakers. “And I certainly want to dispel any implication that the reason there was so many hours taken is a result of the judge’s failure to act.”

Some bill opponents asked that the deadline for a hearing be extended to at least 48 judicial hours — meaning the clock would stop for nights and weekends — on the basis that a literal 48-hour timeline prevents even defense attorneys from preparing their case to get their client out. 

Noble, representing prosecutors, said lawmakers needed to consider all the support staff needed to prepare for the kind of robust hearing envisioned in the Valdez-Jimenez ruling. That includes investigative staff to pull criminal histories from an FBI database, staff to obtain information from law enforcement and staff in the pretrial services department to prepare risk assessments (an evaluation of how likely a defendant is to skip court or commit another crime).

“It is not as simple as just providing prosecutors to staff these hearings on the weekend,” she said. 

Judge Stephen Bishop of White Pine County called the 48-hour drop-dead timeline an “overcorrection.”

“It's going to be setting my court up for failure, my attorneys that for failure, and even the defendants up for failure,” he said during a hearing on the bill.

Some proponents said the cost concerns did not outweigh constitutional rights.

“What I'm hearing is that upholding our civil liberties is too expensive,” said Las Vegas resident Joseph Lankowski, who testified to lawmakers while he was out of jail on bail. “Where are we going to find the money to give our citizens their constitutional rights? And that's just not a viable excuse for me.”

In an interview, Harris acknowledged the new requirement could be a challenge, but she said she hoped it would push jurisdictions that have underfunded correctional facilities and services for people who cannot afford a lawyer to direct federal American Rescue Plan dollars to the cause.

“I think the courts are going to have to stretch a little bit, and get creative in order to be able to meet this new 48 hour requirement,” she said. “I’m hoping that the statutory requirement will give them a little bit of motivation to invest in that area.”

The bail window at the Las Vegas Detention Center as seen late Thursday night, July 29, 2021. (Daniel Clark/The Nevada Independent)

Work left undone

The Legislature’s moves this session fell short of doing away with cash bail. Proponents had hoped to get rid of the bail schedule entirely when they thought they might have the timeline reduced to 24 hours — that would make it unnecessary because incarcerated people would know they will see a judge within a day and could likely avoid missing much work because they are behind bars.

“We could eliminate bail, if we went to the 24 hours, and then it wouldn't be a wealth-based system,” said Clark County Chief Deputy Public Defender John Piro, who noted many people bail out within the first 12-24 hours. “But because we're not there, we're gonna have to keep some amount of bail so that people can bail out if they get ahead.”

The issue is also complicated because the Nevada Constitution explicitly says “all persons shall be bailable by sufficient sureties” except in certain murder cases. Eliminating cash bail would likely mean embarking on the multi-year process of removing it from the Constitution; Harris said she wasn’t aware that anyone is launching such a project.

The bill wasn’t the only one to come out of the work of a committee that spent the legislative interim exploring Nevada’s pre-trial release system. One bill that made it into law, AB440, requires officers to give people a citation instead of something stronger for their first nonviolent misdemeanor offense. 

The committee did also send a letter to court administrators, asking them to re-validate a pretrial risk assessment form. In interim meetings, several speakers argued the tool perpetuated racial biases because it predicts future conduct on statistics such as previous arrests among people of certain races.

Another bill, SB401 proposed collecting detailed information about the number, reason and bail amounts of people being held in jail before trial, and reporting that data to a statewide court administrator. It died over concerns about the costs of implementation.

If football is the analogy, Harris said, the Legislature didn’t quite score a touchdown on bail issues, but got within goal range. Keeping cash bail, but requiring a hearing within 48 hours, allows people who can get out earlier the option of doing so because they can pay, without letting those who can’t remain in jail for too long.

“Forty-eight hours I think is where we could kind of push our system right now to be a bit better,” Harris said.

Turner said she hasn’t seen much of a difference in bail practices in the year since the Supreme Court's ruling, based on calls she receives from people seeking help through the Freedom Fund, although she is noticing that bail amounts have been lower than they previously were. She’s also heard people say they aren’t getting the Valdez-Jimenez hearings they are entitled to — a trend that attorneys said they noticed in the wake of the decision.

She wants to make sure courts are complying with the ruling and stricter timelines. But she’s also got her eye on bigger goals than just successful implementation, including getting law students involved in helping craft future policies that take bold steps in changing the criminal justice system.

“I think I'm reimagining what pretrial detention is, and what it actually means for public safety,” Turner said. “Figuring out how we can write new policy and write and create new systems that reflect the world that we all want to live in.”

Death penalty, use of force and bail: The top criminal justice reform issues on tap in the Legislature

While the state budget is sure to dominate discussions during the ongoing legislative session, lawmakers haven’t shied from queuing up some heavy-hitting proposals for criminal justice reform. 

They plan to take another shot at abolishing the death penalty, work to decriminalize traffic tickets and implement policing measures such as tracking use of force incidents and making it easier for people to sue officers when they believe their rights were violated. Meanwhile, court decisions since the 2019 session have forced lawmakers’ hands after they previously hit an impasse on whether to abolish cash bail.

“We are going to do everything in our power to ensure that that is a focal point of this session and taken very seriously by lawmakers and to ensure that it doesn't get lost in the sea of what is sure to be a session based on the budget,” said Holly Welborn of the ACLU of Nevada.

The 2019 session was viewed in large part as the “criminal justice session” because of a major bill — AB236 — that sought to reduce the prison population through a series of changes to penalties for lower-level crimes and by increasing access to diversion programs. 

Representatives for district attorney’s offices said they were in the Legislative Building more than ever before trying to hammer out the details of that heavy lift.

But momentum for action on the issue of police reform swelled last summer when the death of George Floyd in Minneapolis touched off a new wave of Black Lives Matter protests in Nevada and elsewhere. Lawmakers limited police use of chokeholds and rolled back some of the protections afforded police officers who are accused of misconduct, but activists said they want to hold lawmakers to their statements that the legislation from the special session was just a start.

“We had a very modest step forward. Ending chokeholds in Nevada was a 35-year effort, and we finally did that in the state. But what is that worth if there aren't layers of accountability?” Welborn said. “What does that mean if law enforcement has no neutral body who is overlooking and taking a second look at whatever investigations might come out? What does that mean if police unions are able to to shield individuals from accountability?”

Below are some of the themes Nevadans can expect at the forefront of the legislative session.

Nevada's new execution chamber at Ely State Prison. Courtesy: Nevada Department of Corrections.

Death Penalty

There are already two bill draft requests seeking to abolish the death penalty in Nevada. A bill to end capital punishment got a hearing in 2017 but died, and the concept was not even brought up for discussion in 2019.

It’s possible conditions are changing, though. The Virginia Legislature voted to abolish the death penalty and Democratic Gov. Ralph Northam has signaled he will sign the bill, which could make that the first state in the South to abolish the practice.

Members of the ACLU nationally and Nevada were “completely in mourning” over a string of federal prisoner executions in the final days of the Trump administration, Welborn said. She called capital punishment a “draconian policy that should no longer exist in state law” and pointed to problems the state has had implementing it, including a protracted legal battle over execution drugs when the state moved in 2018 to put Scott Dozier to death.

“We don't want to be in a situation where — and I doubt that the governor wants to be placed in a situation where — we have an execution order that goes out in the state,” Welborn said. “We have pushed for it every session but we're doing a stronger push because now is the time.”

Sisolak said during his gubernatorial campaign that he generally opposes the death penalty except in extreme cases, and a poll by The Nevada Independent in 2017 showed a majority of Nevadans in support of keeping capital punishment legal. But more recent data has not yet been released, and Sisolak’s office on Friday did not commit to signing or vetoing such a bill if it came to his desk.

While the Assembly is more favorable to abolishing capital punishment — even putting the official committee stamp of sponsorship on the proposal — Senate Majority Leader Nicole Cannizzaro (D-Las Vegas) was noncommittal recently when asked whether she would give such a bill a hearing in the Senate.

Cannizzaro works for the Clark County district attorney’s office. Prosecutors say they will be opposing efforts to end the death penalty in Nevada this session, as they have in the past.

“The majority of Nevada voters support capital punishment in the right circumstance,” said Jennifer Noble, who represents the Washoe County District Attorney’s Office. “The Nevada Supreme Court says it’s constitutional, U.S. Supreme Court says that, and our position is just that the voice of the jurors who sat and heard that case should be honored, not second-guessed by our Legislature.”

Rochelle Nguyen (D-Las Vegas), the vice chair of the Assembly Judiciary Committee, said she thinks the conversation will be broader than what it was in 2017, potentially including faith-based, economic groups, counties and others to consider implications of the policy.

“I think in the past it has always been, like, either you were for or against it,” she said. “I think even between 2017 and going into 2021, the conversation is including a lot more people and I think that is important.”

Sen. Dallas Harris at the Nevada Legislature on opening day Monday, Feb. 4, 2019 in Carson City, Nev. (David Calvert/The Nevada Independent)

Policing Reform

Sen. Dallas Harris (D-Las Vegas) said she took cues from Colorado to develop an ambitious slate of 10 policing reform changes that will be rolled out in two separate bills.

After what critics viewed as a heavy-handed police response to protesters over the summer, Harris wants to bar police from shooting rubber bullets at people’s torso, head or back.

She also wants to require police to give ample warning and space for people to disperse before deploying tear gas.

“It's not a ban, necessarily. But it makes it very clear that ‘hey, you know, this squeezing people in on both sides and then tear gassing them — no,” she said.

She also wants better recordkeeping on incidents of police using force. Harris pointed to an interview a Metro deputy chief gave to KLAS-TV indicating that she had access to a dashboard where she could see — for every officer in the department — how many complaints had been lodged against them, how many use of force incidents they were in and how many traffic incidents they were in.

“We need to see that,” she said. “That way we can track trends.”

If that’s not feasible because of cost, she at least wants police departments in the state to report data to the federal government. A federal database on use of force incidents only reflects data from agencies representing about 41 percent of officers in the country.

Harris is aware that some reports may be unsubstantiated and said she’s mindful of not sabotaging someone’s career with false information, but is more concerned about aggregate numbers.

“These aren't designed to punish anyone,” she said. “That's the very nature of something that’s systemic. It's not about you, or how great you are, or your partner is ... it's about reforming the whole system so that it operates a little bit better.”

She hopes to require more education of police officers, too. Rather than just a high school diploma, she wants at least an associate’s degree or two years of military service as a prerequisite.

“There's a strong correlation between education and remaining calm under pressure, critical thinking skills, handling stressful situations, being exposed to people who are a little bit different than you just by nature of being on a school campus,” she said.

Another idea in her bill is either a pilot program or a study on crisis response call centers, in hopes that 911 is not a caller’s only option when help is needed. An alternative could connect people in distress to agencies that could dispatch trained mental health professionals to the scene; she’d like to study whether police officers should accompany those personnel.

She compared it to how the gas company is dispatched to the scene of a gas leak because they are best suited to the call, even though a leak is a dangerous and potentially life-threatening emergency.

“Why are we sending police officers to gas leaks?” she said. “That's what I feel like we're doing when it comes to the homeless man who is in front of your business, or when it comes to the person who's clearly just experiencing a mental health crisis.”

She wants to put limits on the use of force, including the presumption that someone is not a deadly threat if they are pregnant or elderly. That presumption could be overcome with proof.

If an officer fails to reactivate a body-worn camera as required by law, Harris proposes there be a “permissive inference” that the missing footage would have reflected misconduct. A permissive inference is a suggested conclusion for a jury but they are not required to make that finding, and it would apply in investigations for legal proceedings but not in criminal proceedings against an officer. 

She’d also like to create a “state cause of action” that can be invoked if a person believes an officer violated their rights. If the person is just seeking a policy change, an officer could not invoke “qualified immunity” — the principle that government officials are shielded from civil liability unless the person can prove the officer violated clearly established rights, usually through a previous and very similar case. But the officer could use that defense if the person is seeking monetary damages and if the officer had a good faith belief at the time of the conduct that they were not violating the law.

Her bills also would call for collecting data on traffic stops and have UNLV analyze the findings to see if they are more common in communities of color.

She also wants police departments to establish an early warning system and intervene in some way if there are red flags for a particular officer, such as a high number of citizen complaints, a high number of use of force incidents, or instances of improper detentions or searches. 

“Let's give them some more training, maybe it's more intense supervision, before that bias manifests itself in a way that's not reversible,” she said.

And finally, she wants to ban restraint chairs that are used in jails.

“Sometimes they strap people in very uncomfortable positions. They'll leave you there for days. It's just inhumane,” she said.

Harris said she is trying to meet with as many people as she can to get feedback on her ideas before they go primetime. Her only concern is that the issue may be losing momentum, and she’s reminded advocates that with the budget and redistricting taking up oxygen, she may need them to fight a little bit harder for these changes.

“My focus is trying to keep it in the forefront,” she said. “We don’t see the protests in the streets every day like we did. But the issue just — it hasn't gone away.”

Assemblyman Yeager and Senator Nicole Cannizzaro,
The two chairs of the Judiciary committees, Assemblyman Steve Yeager and Senator Nicole Cannizzaro, during a hearing on a gun background check bill on Tuesday, Feb. 12, 2019 in Carson City, Nev. (David Calvert/The Nevada Independent)

Adjustments to 2019 Reforms

One of the capstone accomplishments of the Democrat-led Legislature in 2019 was the passage of AB236, an omnibus bill filled with law changes that ultimately sought to reduce the prison population in Nevada and avert hundreds of millions of dollars in corrections spending over the coming decade.

It was the culmination of intensive data analysis conducted by the Crime and Justice Institute and work in the interim from the diverse membership of the state’s Advisory Commission on the Administration of Justice. The bill, which made a variety of changes that headed off some parole revocations and eased some drug crime penalties, passed on party lines in the Assembly and on a broader, bipartisan basis in the Senate in spite of prosecutor opposition.

Prosecutors note that much of the bill took effect only six months ago — meaning it may be both hard to tell its full effect, and lawmakers may be hesitant to make significant changes as they watch for how things play out. The male prison population in Nevada in November was only about 84 percent of what it had been projected to be, although it’s unclear how much of that can be attributed to the bill and how much might be linked to unusual inmate movement trends related to COVID-control measures.

“We're still working out a lot of kinks,” said John Jones, who represents the Clark County district attorney’s Office. “Some issues have sort of bubbled to the top.”

But there are a few changes prosecutors will be pushing for this session. One is about parole revocation hearings — prosecutors say the bill in some ways tied the hands of judges.

“It used to be a judge could revoke for any violation of probation,” Jones said. “But after 236, a judge is limited in what they can do, depending on what the violation is that's in front of them at the time. So we've had some defendants show up in court with some pretty serious allegations … that don't meet the requirements for actual revocation.”

One example is that while felons are prohibited from having a gun, people with gross misdemeanors are legally allowed to have guns. But some people with gross misdemeanors are on probation and are prevented from having a gun as a term of their probation; prosecutors think it should be easier to revoke their probation if they are found to have one. 

“So far, the conversations that we've had with legislators — they've been open to changes, but I think because the bill is so new, they don't want to make any drastic changes right now,” Jones said. “There's some desire to defer, at least until [the] 2023 session, so we can really have a longer period of time to see how the bill actually plays out.”

The Washoe County district attorney’s office wants to study the effect of the bill on the community and public safety at large, rather than just on incarceration numbers. They’ve obtained a grant from the Crime and Justice Institute and are trying to figure out what metrics to be using to quantify it over the next few years.

“With the pandemic, that's sort of hard to quantify because people are staying in their homes,” said Noble. “Is this making our communities safer? Is it an improvement? Do we have better criminal justice outcomes? And that's a question that only time is really going to answer.”

Welborn said she’s also curious about the legislation’s impact, and how much of the current decrease in the prison population derives from the bill as opposed to the unusual trends brought by the pandemic. 

“I think it's too soon to tell what the long term impact will be,” Welborn said. “This is going to be over the course of, I believe, a decade where we will really see that large dollar impact and large population impact.”

Clark County Detention Center
Buses are parked outside the Clark County Detention Center in Downtown Las Vegas on Wednesday, Feb. 5, 20120. (Daniel Clark/The Nevada Independent)

Bail

Advocates have been pushing for years to get rid of cash bail, saying the practice leads to poor people languishing in jail because they can’t afford bail while richer people leave almost immediately. But negotiations on bills to reform bail broke down in the 2019 session, and Cannizzaro pushed a resolution to study the issues surrounding bail as a compromise to keep the issue alive.

“We look forward to shining a light on some of the inequities in the criminal justice system that bail has wrought and bringing that to this body next session to, hopefully, find a solution,” public defender John Piro testified at a hearing for the resolution in 2019.

In a move that upped the urgency of the changes, the Nevada Supreme Court issued a ruling in April 2020 that required significant guardrails as to how the state administers bail. The ruling came in the case of Jose Valdez-Jimenez, who was assessed a $40,000 bail that he couldn’t afford after stealing merchandise from a Victoria’s Secret in Las Vegas.

An interim legislative committee over the summer advanced a list of 16 recommendations for reforming the way the state administers bail, in large part incorporating the decisions from the Supreme Court. The committee has five bill draft requests codifying the recommendations in the committee’s final report, although the actual bills have yet to be introduced.

Among them are requiring bail hearings to be conducted in a reasonable amount of time and requiring the use of federal poverty guidelines when determining a defendant’s ability to pay bail. 

Another recommendation puts the onus on the state to prove, by clear and convincing evidence, that the conditions of release they’re seeking are the least restrictive needed to ensure community safety and the defendant’s return to court.  

And another proposal requires quarterly reporting of certain information about bail, including data about who is in jail and why, and reports about people who are held on bail less than $2,500 for more than a week.

“A lot of the arguments that we have had in the past were answered by the Nevada Supreme Court in the Valdez-Jimenez decision,” Jones said. “What we're really arguing about is the implementation of the Supreme Court's decision.”

Among those points is how the Legislature should define a “prompt” hearing. Prosecutors say they don’t want to violate a defendant’s rights, but also want to make the requirements feasible for rural courts that do not have the resources to do what Clark County has done — hold initial appearance hearings twice a day, every day of the week and every week of the year.

Prosecutors also want to secure the ability to ask for a short continuance that might extend the time someone is behind bars when they need more time to work on a case.

“Sometimes we need more time when our spidey sense goes up about a defendant based on what we've read,” Jones said.

Trooper Hannah DeGoey traffic stop
Nevada Highway Patrol public information officer, Trooper Hannah DeGoey during a ride along on Feb. 14, 2020. (David Calvert/The Nevada Independent)

Decriminalizing Traffic Tickets

Nguyen wants to re-up a discussion about decriminalizing traffic tickets. Under the current system, an unpaid ticket can escalate to an arrest warrant, leading to people being jailed and facing the related consequences for nothing more than an overdue fine.

That can be particularly life-altering for undocumented immigrants, with an unpaid ticket turning into an interaction with immigration authorities through the jail and potentially deportation.

During the pandemic, some local jurisdictions have eased their rules on traffic violations. The Las Vegas Justice Court suspended enforcement of about 270,000 outstanding traffic warrants in April, meaning people would not be arrested for them if stopped.

Nguyen said she hopes to draw on experiences like those that were driven by the pandemic, as well as that of Carson City, which in 2019 stopped adding additional warrant fees and stopped arresting people on the basis of a traffic warrant.

“I was kind of inspired to see that they were able to do it, they're still standing,” she said. “It's convenient when you have someone who tried to do it on their own and we're being innovative, because they can tell us what some of the pitfalls are.”

Prosecutors say they do support the idea of making traffic tickets civil offenses rather than criminal.

“We've looked at some other jurisdictions that do it and I think we can make that work here in Nevada,” Jones said.

Under a civil model, the district attorney’s office would be out of the business of prosecuting traffic offenses, and instead, anyone seeking to contest their ticket would show up to court, along with the officer, and the judge would make a determination based on the preponderance of evidence. Prosecutors say they rarely have the bandwidth to put their full effort into minor traffic cases anyway.

“We're focused on the robberies, the murders, the sex assaults, the serious property offenses,” Jones said. “Oftentimes traffic doesn't get the attention that maybe it should, because our priorities are focused elsewhere, our eyes are elsewhere due to our high caseloads.”

One snag is that traffic ticket fines fund court operations and local government operations. They would have to find another revenue source if income from tickets dropped.

“I think most people would agree it's a horrible way to fund your judiciary, but that's where we are right now,” Jones said.

But, prosecutors say, it’s unlikely that there are large swaths of people who would only pay their fines if they had jail time hanging over their heads, and would flout the penalties under a civil system.

Nguyen said the current system — with penalties that grow if they go unpaid — can even make people less inclined to pay an overdue fine.

“If you get a $200 ticket, and then you miss a payment and all of a sudden that's a $550 ticket, you're probably less inclined or don't have the resources to pay the $550 ticket,” she said. “But if the ticket remained at $200, you might be more inclined or might be more able to do so.”

Voters wait in line at the May Museum at Rancho San Rafael Park on Tuesday, Nov. 6, 2018. (David Calvert/The Nevada Independent)

Marsy’s Law

The strictures of Marsy’s Law, a constitutional amendment approved by voters in 2018 that requires more notification of crime victims during the proceedings against the person they’re accusing, can sometimes be at odds with the goal of holding bail hearings more promptly.

The Washoe County DA’s office is using electronic notifications — including texts and email depending on the victim’s preference — to notify victims of hearings. But prosecutors said it’s been a challenge to have the kind of system where victims can easily log on and understand what’s happening with their case.

During the special session, lawmakers axed $10 million designated for implementation.

“I think people do default to us to be the de facto implementer of Marsy’s Law, and it is just as much the obligation of the court as it is our office,” Jones said.

The ACLU of Nevada has several concerns about Marsy’s Law, including whether requirements to notify victims about court proceedings will interfere with the need to hold initial hearings within 48 or 72 hours. 

“If that indeed happens, then that's a clear rights violation,” Welborn said.

There’s also concern about how the law’s requirement that victims be paid full and timely restitution has led to large cuts of money sent to inmates by their loved ones being diverted to restitution. Families complained that the prison system’s initial 80 percent garnishment was too oppressive and prevented inmates from getting funds they needed to buy basics from the commissary; the rate was recently reduced to 50 percent.

“What limitations are we going to place on that implementation?” Welborn asked. “I think we're getting closer and closer to needing the courts to weigh in on exactly what it is that law means.”

Nevada may change DUI law to reflect the unique ways marijuana affects the body

Trooper Hannah DeGoey traffic stop

Trooper Hannah DeGoey guides her silver Charger through Reno traffic as the sun sets, flipping on her radar from time to time to check the speed of cars whizzing by.

There’s a young driver who was speeding and driving friends around with expired insurance, and a man in a VW Bug who she saw using his cell phone on the freeway; she stops both and politely issues tickets. But mercifully, radio reports of a rollover on I-80 were false alarms, and nobody seems to be showing obvious signs of driving under the influence on this Friday night.

“I feel so strongly about getting drunk drivers off the road,” said DeGoey, who joined the Nevada Highway Patrol after years in a police department. “Even though our pay is less than the surrounding agencies, we're short-staffed just like everyone else, the mission of the highway patrol just really spoke to me.”

DeGoey is carrying on at a time when Nevada is at a crossroads: still trying to understand the implications of legalizing adult use marijuana three years ago, and how to ensure those who are driving when they shouldn’t face consequences without ensnaring those whose legal high has long since worn off. She has specialized training to detect impairment not just from alcohol, but marijuana and other drugs.

Still, it’s a murky proposition. Cannabis works through the body differently than alcohol, eluding clear-cut measurements like the 0.8 blood alcohol content threshold. Limitations on crash data record-keeping and the rise of “poly substance” use in which more than one chemical shows up in the blood at the time of a crash make it difficult to pin blame.

“In order to draw accurate conclusions we need more data regarding the role of marijuana use and traffic crashes. At present the State has a limited set of data to work with,” said Amy Davey, administrator of the Nevada Office of Traffic Safety. “What we do know based on 2016 through 2019 data is that a little over half of all fatal crashes in Nevada include the presence of one or more impairing substances in an individual involved in the crash.”

Democratic Assemblyman Steve Yeager, who’s chairing a committee that is spending the year developing recommendations on how to tweak Nevada law on marijuana DUIs, said he doesn’t think the sky is falling on road safety since cannabis became legal. Just as in the aftermath of Prohibition, states are increasingly allowing adults to make decisions about cannabis use.

“None of the evidence that was there made me think that we've had any sort of dramatic increase. I think we're more aware that people are using cannabis and we're more aware of the poly drug use where people are using multiple substances,” he said in an interview. “I think it's really hard to kind of come up with a correlation. … Even in the other states, some of the data that was presented, I thought it was really unclear.”

States that have gone through similar exercises, such as Michigan, have advised against setting any specific numbers on what constitutes a marijuana DUI, instead recommending officers determine on a case-by-case basis who is impaired.

In spite of the ambiguity, national traffic safety officials have narrowed its message to “If You Feel Different, You Drive Different.” At the end of the day, the state’s aim to zero out fatal roadway crashes could depend on individual decisions, and accountability could hinge on more subjective measures such as an officer’s observation of someone’s behavior than a single number from a lab reading.

“Of course we want zero fatalities, but the reality of us reaching it — I don't know if it seems within grasp sometimes,” DeGoey said. “We try to educate the public. We try to go on these joining forces campaigns … we do the best we can, but it comes down to the driver's responsibility of being a better driver.”

Trooper Brian Eby traffic stop
Nevada Highway Patrol Trooper Brian Eby during a traffic stop on Feb. 14, 2020. (David Calvert/The Nevada Independent)

The science

Of the more than 100 different compounds in the cannabis plant called “cannabinoids,” the one most responsible for the high that comes from marijuana is delta 9 tetrahydrocannabinol, or THC. The psychotropic effects come when that compound binds to a receptor in the brain.

Nevada law specifies that a person is driving under the influence of marijuana if at least two nanograms per milliliter of delta 9 THC are found in the blood, and five nanograms per milliliter of the metabolite 11 hydroxy THC.

That so-called “per se” limit — a concrete number that triggers a DUI — rubbed many people who showed up to the interim committee’s inaugural meeting in January the wrong way. That’s because research shows specific quantities of THC are often unreliable predictors of impairment.

“It can't be attached to nanograms in the blood system, because I can line up a dozen, 100 patients … that will all test 50 times over the limit and show little or no impairment,” said Ralph Wenger, the owner of a marijuana cultivation facility in Clark County. 

Wenger was referring to drug tolerance, which can develop in people who regularly use large quantities of marijuana. Over time, they are able to function more or less normally after ingesting levels of cannabis that would have a noticeable effect on uninitiated users. 

Advocates pointed to a warning from the Food and Drug Administration that people should not drive after taking the medication Marinol, a synthetic form of delta 9 THC, “until it is established that they are able to tolerate the drug and to perform such tasks safely.”

“I feel like this is an incredible acknowledgement from the FDA acknowledging that experienced consumers tend to become tolerant to many of cannabis’ effects, including the effects upon psychomotor skills,” said Madisen Saglibene, executive director of the Nevada and Las Vegas chapters of The National Organization for the Reform of Marijuana Laws (NORML).

There’s also a difference in how THC breaks down over time. The body absorbs alcohol and reaches peak blood alcohol levels about 10-25 minutes after consumption, then metabolizes it in a linear fashion over time, with all of it excreted over the course of seven to nine hours. 

But there are two distinct phases through which the body processes THC. First comes the rapid elimination phase, when it takes about six minutes to halve the amount of the compound in the body. Then comes the long-term elimination phase, in which it takes about 22 hours to achieve another “half-life.”

Biologically, that’s because THC is rapidly absorbed into fat tissue but then slowly released into blood circulation. A 2008 study from Germany showed that habitual users can have detectable — even DUI-worthy levels — in their blood for days after they began abstaining.

And then, there’s the trouble with THC producing a delayed high. The effect of cannabis on the central nervous system happens after the initial rapid elimination phase, meaning concentrations of the chemical in the blood have often plummeted to below the legal limit by the time serious impairment of the brain kicks in an hour or more after consumption.

Public commenters said they feared that their lives and careers could be devastated by a DUI stemming from use that is no longer impairing them. Wenger said one of his employees, a medical marijuana patient apprehended at a DUI checkpoint last Super Bowl Sunday, has faced multiple court dates and now has an ignition interlock device to drive her car as a result.

As public commenter Chris Thompson put it, “I just don't think a woman who took an edible the previous night to go to sleep for her chemotherapy treatments shouldn't be able to drive the next afternoon to go to her oncology appointment.”

Yeager, the chair of the committee, has expressed discontent over the current protocol, even though he acknowledged a lingering fear of drunken and drugged driving.

“I think I speak for everyone on this panel that we are very interested in making sure we don't have impaired drivers on the road,” he said. “We are not looking to authorize impaired people to drive. What we're trying to do in this committee is figure out how do we make that determination when it comes to cannabis?”

Trooper Hannah DeGoey traffic stop
Nevada Highway Patrol public information officer, Trooper Hannah DeGoey during a ride along on Feb. 14, 2020. (David Calvert/The Nevada Independent)

The Jessica Williams case

One of the most prominent Nevada cases involving a marijuana DUI was that of Jessica Williams, who had visited Valley of Fire State Park and smoked some marijuana there with friends in the year 2000. On the way back, she fell asleep behind the wheel and fatally hit six youths who were picking up trash on the side of Interstate 15 as court-ordered community service.

While a jury found that Williams was not impaired and had simply fallen asleep, the “per se” law that allowed no detectable amount of marijuana in the body whatsoever forced a DUI conviction. She ended up serving 20 years and was only released on parole in recent months. 

“We need to eliminate the per se levels on the marijuana,” her lawyer, John Glenn Watkins, told the legislative interim committee. “I want to be fair to everybody in the state of Nevada or anybody who comes to the state of Nevada. We need to eliminate that because we don't need to have non impaired people prosecuted, convicted of DUI.”

Still, six states had “per se” limits as of 2019, ranging from 1 nanogram per milliliter in Pennsylvania to 5 in Montana, Washington and Colorado.

Yeager, a former public defender, acknowledged that it might be harder for prosecutors to prove a DUI case when they can’t just use a lab test result. He expects more opposition from law enforcement and prosecutors in future meetings.

“I think some of those folks who are in that world would like it to stay like it is, because having a black and white rule is easy — it's easy to enforce,” Yeager said. “It doesn't make it just or right.”

He said judges may have to make more subjective decisions, as they do for drivers under the influence of prescription drugs, which don’t have per se limits.

“When you're looking at that question and you have no blood test and you have no level, you're looking at things like, well how does the person act, what did they say to the officer and with the field sobriety test, almost everybody now has body cameras,” Yeager said. “The judge can actually watch the field sobriety test and you can see how the person did and you can see what they were saying. That's just going to be a little bit more subjective than a blood test.” 

Trooper Brian Eby traffic stop
Nevada Highway Patrol Trooper Brian Eby during a traffic stop on Feb. 14, 2020. (David Calvert/The Nevada Independent)

The statistics

While Nevada crashes where only alcohol was involved fell by 16 percent from 2017 to 2018, the number of crashes involving any combination of drug and/or alcohol jumped by 9 percent.

But with just one year of data, “this system has not tracked all impairing substances over a long enough period of time for us to draw conclusions” about causes or trends, Nevada officials said. 

Federal DUI record-keeping is evolving as marijuana becomes more prevalent, but still lacks some details.

In the past, reports to the national Fatality Analysis Reporting System were only able to accommodate information for up to three substances found in a crash subject’s system. That’s a problem when, for example, the Washington state toxicologist found up to 25 substances in a person’s blood.

Even with the update, however, the reports do not indicate the quantity of a substance in the person’s blood. So while it may report that marijuana was present at a crash, it’s hard to tell how much there was.

While it’s difficult to give the public the kind of clear-cut message it gives regarding alcohol, the National Highway Traffic Safety Administration since 2018 has run a major public information campaign not to get behind the wheel if they don’t feel normal.

“Driving is a complex task, and one that requires a person be in full possession of their mental and physical capabilities,” Davey said. “We all share the same roads and driving while impaired by any substance impacts the safety of all other drivers, pedestrians, bicyclists and motorcyclists on the roadway.”

Trooper Hannah DeGoey driving
Nevada Highway Patrol public information officer, Trooper Hannah DeGoey during a ride along on Feb. 14, 2020. (David Calvert/The Nevada Independent)

The solutions

The authors of a marijuana DUI study last year in Michigan felt strongly that a DUI should be based on the results of field sobriety tests rather than a hard-and-fast number. Research has shown that the horizontal gaze nystagamus test that is considered the most reliable for alcohol impairment is less reliable for detecting cannabis impairment. The tests considered best for identifying marijuana impairment are considered a finger to nose test and the modified Romberg balance test.  

They also recommended more research to validate field sobriety tests for detecting drugged driving, and more advanced training for officers on detecting impairment. 

Nevada has specially trained certain officers how to look for impairment. The Office of Traffic Safety has received a grant from the Governors’ Highway Safety Association and Responsibility.org and is sponsoring training for law enforcement officers for roadside detection of marijuana impairment, which teaches advanced skills for recognizing signs of marijuana driving impairment.

Yeager said he doesn’t anticipate the committee, after months of meetings, will come up with set numbers to recommend lawmakers adopt in the 2021 session. Jennifer Noble of the Nevada District Attorneys Association acknowledged that “it’s hard to pinpoint a magic amount that’s going to correlate with impairment.”

But she said that if per se limits are removed, “all we’re left with is the observations of the officer,” and that could be unreliable if those officers are not properly trained on the way different substances impair drivers. Changing the law without paying for more training would be “putting the cart before the horse.”

“Ideally what would be great is if we had more drug recognition experts,” she said. “It enhances our ability to prove those beyond a reasonable doubt.”

Still, groups such as NORML are pushing for changes so that their member base — marijuana consumers — have peace of mind about legal consumption.

“There is a lot of fear because they’re either driving around to get to work or driving for a living. People are just wanting clarification,” Saglibene said.

Marijuana may be widely legal, she said, but there is much work still to be done to change Nevada laws to match growing societal acceptance.

“It feels like it’s really just beginning,” she said.

Updated at 8:40 a.m. to reflect DeGoey previously worked at a police department.

Bail reform efforts going down to the wire as Legislature heads to finish line

William McCurdy speaking into a microphone during a protest against cash bail outside of the Nevada Legislature

Efforts to reform Nevada’s bail system for cash bail are still on life support, with any movement likely to come down to the wire as the legislative session draws to a close.

Despite a flurry of rallies and campaign pledges to “end cash bail,” no surviving bill in the Legislature at this point would entirely do away with the process of requiring some monetary deposit in return for pretrial release, and other bills that attempted to substantially overhaul the system have largely fallen by the wayside.

Instead, what may be the last potentially major changes to the state’s bail system are alive in the form of Democratic Assemblywoman Dina Neal’s AB125, which was passed out of the Assembly on a party-line vote Friday, but it likely faces an uncertain path as law enforcement and district attorneys question the implementation and effectiveness of the bill.

“I feel like this is going to sound cliché, and you’ve probably heard this a million times, but nobody is really happy with it, which generally means that it’s a decent piece of legislation,” Clark County Public Defender’s Office lobbyist John Piro said in an interview.

Assemblyman Ozzie Fumo speaks in front of the legislative building where activists and progressive groups are calling for an end to cash bail.
(Joey Lovato/The Nevada Independent)

The bill creates a “rebuttable presumption” that the vast majority of defendants arrested on suspicion of a crime should be released on their own recognizance (without conditions), and that monetary bail only be imposed if a judge determines other conditions of release are not adequate to ensure a person will return to court. It was amended significantly from its original version, which initially made minor tweaks to what a judge must consider before requiring a defendant pay bail.

The amended measure would require courts to hold “individualized custody review” hearings within 72 hours of any defendant being arrested, including weekends and days that a court is not in session, where a judge is required to review custody status and grant pretrial release if appropriate. During that hearing, a court would be required to issue an administrative order detailing conditions of pretrial release, and the bill also sets a requirement that a person be released with the “least restrictive conditions” outside of first degree murder cases.

It requires judges to condition release — between unconditional release, regular check-ins, home monitoring and requiring cash bail — based on factors deemed necessary for community safety, victim safety and to ensure they appear in court.

Kendra Bertschy, a lobbyist with the Washoe County Public Defender’s Office, said that those provisions in the bill were intended as a way to ensure people arrested throughout the state could expect the same treatment prior to a trial no matter where they might have been arrested.

“Our goal with this bill is just to make sure that everyone has an idea of what the process is going to look like, and then the judge really has to consider the individual, has to consider the facts of the offense, has to consider all those issues before deciding on a bail schedule,” she said. “This is something that’s going to impact anyone who is arrested. People find out what their bail is set at and have this hearing, and they’ll have a different process than they would have prior to this.”

But setting requirements for quick turnarounds on hearings and bail schedules could prove difficult in other counties, Washoe County District Attorney's office lobbyist Jennifer Noble said, adding that the bill as drafted would put stringent requirements on smaller rural courts that would face difficulties in keeping up with the requirements in the bill.

“We want to make sure that the final bill works for all of Nevada, not just certain counties,” she said. “We’ve got an extremely complex issue, and counties that are very different with different needs and different abilities to comply with aspects of the bill. We want to make sure that the bill is something that all of them can comply with.”

John Jones, a lobbyist for the Clark County district attorney’s office, said the bill was still being worked on and as written would “cause more problems than it solves.” But he said his office had been an “integral part” of efforts to improve the bail and pretrial release system in Clark County, and wanted to be sure that any changes made in the Legislature were effective.

“It’s a work in progress,” he said. “But to say that we’re against bail reform is not true. We’re always willing to look and see what other people are doing, best practices, and make the changes accordingly.”

During custody review hearings, the bill would require judges to release any defendant charged with a misdemeanor that does not involve the use of force or violence, and would require any person charged with a gross misdemeanor or lower to be released without conditions as long as the underlying crime does not involve violence or is a sexual offense.

Notably, it also requires any monetary bail not be set on a predetermined schedule, and instead requires bail to be based on the financial resources of the dependent and must be set to “ensure reasonably” the person will appear in court and not pose a danger to the community. It also requires that any defendant eligible for pretrial release not be detained solely for a financial inability to pay bail.

Piro said those provisions were intended to make sure that arrested persons were not stuck in jail on minor charges because they couldn’t afford whatever a judge ordered for bail.

“That’s what's happening right now,” he said. “If you have money, $5,000, $10,000, that’s nothing to you. If you’re homeless, you get caught sleeping on a park bench and the judge sets your bail at $1,000 because that’s the ‘bail schedule,’ you might as well make it a million because that homeless person isn’t getting out.”

Democratic Assemblyman Steve Yeager, who chairs the Assembly Judiciary Committee, said the provisions in the bill had various carve outs for public safety and other concerns for a judge to set cash bail, but that it was intended to give judges a chance to reassess bail if its found a person could not afford it.

“I envision that going into the finances and lowering the bail is going to happen in situations where we're not talking about the crime of the century, and maybe it was a close call between release without bail and bail,” he said.

The bill also makes other changes to bail rules, including prohibiting the state from changing a recommended bail schedule in a criminal complaint if it presents the same case and receives an indictment from a grand jury. It also requires each court to compile and report decisions on individualized custody release decisions annually to state lawmakers, though Piro said that section was likely to be removed amid cost concerns from courts.

The amendment is in some ways a continuation of ongoing discussions and negotiations between law enforcement, district attorneys, public defenders and civil rights groups that began with Democratic Assemblyman Ozzie Fumo’s AB325, which would have more substantially changed the state’s rules and procedures for granting cash bail. Fumo said in a brief interview that he was not involved in discussions on AB125, hadn’t requested to be added as a co-sponsor and hadn’t yet read the bill.

Yeager, who chairs the Assembly Judiciary Committee, said the discussion on bail had centered on both bills but that the “decision was made” to go forward with AB125, which is sponsored by Democratic Assemblywoman Dina Neal.

“We had waivers on both and could have gone in either direction but I think it made more sense to go with 125,” he said. “So really, it is the product of the work that was done on 325.”

Yeager declined to predict whether any major changes to the state’s bail system would make it through the session with only days to go before sine die.

“On the Assembly side, we’re intending to move something out that’s significant,” he said. “We’ll see what it comes back looking like if it comes back.”